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Down to the Wire: Assessing the Constitutionality
of the National Security Agency's Warrantless
Wiretapping Program: Exit the Rule of Law
Fletcher N. Baldwin Jr.
University of Florida Levin College of Law, [email protected]
Robert B. Shaw
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Fletcher N. Baldwin, Jr. & Robert B. Shaw, Down to the Wire: Assessing the Constitutionality of the National Security Agency's Warrantless
Wiretapping Program: Exit the Rule of Law, 17 U. Fla. J.L. & Pub. Pol'y 429 (2006), available at http://scholarship.law.ufl.edu/
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DOWN TO THE WIRE: ASSESSING THE CONSTITUTIONALITY
OF THE NATIONAL SECURITY AGENCY'S WARRANTLESS
WIRETAPPING PROGRAM: EXIT THE RULE OF LAW
FletcherN. Baldwin, Jr.* & Robert B. Shaw*"
....................................
I.
INTRODUCTION
II.
WIRETAPPING-THE GENESIS .........................
A . Origins ........................................
1. Olmsteadv. United States .......................
435
437
438
THE PRESIDENT LACKS BOTH THE
CONGRESSIONAL AUTHORIZATION AND INHERENT
AUTHORITY TO EFFECTUATE THE NSA PROGRAM .........
A. The PresidentLacks CongressionalAuthority to
Effectuate the NSA Program .......................
B. The PresidentLacks the InherentAuthority to
Effectuate the NSA Program .......................
RECOMMENDATIONS TO CURE THE NSA
PROGRAM'S ILLEGALITY .............................
III.
435
435
2. Nardone v. UnitedStates .......................
3. Katz v. UnitedStates ...........................
B. Keith and the Legality of Wiretappingfor Domestic
Threats to NationalSecurity .......................
C. Attempts to Extend the Keith Doctrine to
Foreign Threats ................................
D. The Legislative Response: FISA ....................
E. September 11th and the Genesis of the NSA Program ...
II.
430
440
442
444
447
449
450
456
462
Chesterfield Smith Professor ofLaw and Director, The Center For International Financial
Crimes Studies, Levin College of Law, Holland Law Center, University of Florida, Gainesville, FL
32611; Honorary Fellow of Advanced Legal Studies, University of London.
** Research Fellow, The Center For International Financial Crimes Studies, Levin College
of Law, Holland Law Center, University of Florida, Gainesville, FL 32611. I would like to thank
Professor Fletcher Baldwin for sharing so generously with his time, talents, and scholarship. I
would like to thank my brother, William, for his dearly appreciated friendship, my father, Bob for
giving me the opportunity to succeed, and my mother, Eileen, who taught me to believe in myself
and impressed upon me the value of perseverance. And of course, I would like to thank Jessica, for
her love and support, without which, I would never have made it this far.
*
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IV.
V.
[Vol. 17
CONCLUSION: THE RULE OF LAW: AN ESSENTIAL
ELEMENT TO WINNING THE "WAR ON TERROR" ............
463
EPILOGUE. .........................................
469
I. INTRODUCTION
The greatest collateral damage from the September 11, 2001, terrorist
attacks has been borne by international and domestic law principles in the
name of national and homeland security. While it is conceded that one of
the primary duties of a constitutional government is to ensure the survival
of its governing regime and the physical safety of its citizens, there is an
equally important duty for the governing regime to preserve democracy
and civil liberties, and to fulfill the duties and obligations assumed under
international and humanitarian law. The late U.S. Supreme Court Chief
Justice Earl Warren eloquently illustrated this delicate balance of national
security interests and democratic principles in his majority opinion in
United States v. Robel:'
This concept of "national defense" cannot be deemed an end in
itself, justifying any exercise of ...
power designed to promote
such a goal. Implicit in the term "national defense" is the notion of
defending those values and ideals which set this Nation apart. For
almost two centuries, our country has taken singular pride in the
democratic ideals enshrined in its Constitution... It would indeed
be ironic if, in the name of national defense, we would sanction the
subversion of... those liberties.., which make the defense of the
Nation worthwhile.2
Do Chief Justice Warren's words bear directly upon the "war on
terrorism"? The hyperbole, as with its predecessor, "war on drugs," wears
thin when it reflects a rule by law and no longer communicates a rule of
law.
The primary purpose of constitutional law is to maintain domestic and
international order so that people may pursue their interests within a
predictable legal framework. Such a legal framework depends upon
1. 389 U.S. 258, 264 (1968).
2. Id.
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DOWN TO THE WIRE: ASSESSING THE CONSTITUTIONALITY
judicial interpretation of conflicting assumptions that function and operate
within the national psyche.
As the soul of the constitutional democracy, the rule of law reflects
formal and informal obligations and agreements within a constitutional
context and includes human rights not subject to majority rule. In this
manner, the rule of law facilitates order and respect through expectations.
These expectations are essential if society is to survive in a predictable,
peaceful and secure fashion.4 However, within the context of present
circumstances,5 Amitai Etzioni6 raises several important questions: "Under
what conditions is democracy undermined?" 7 "Are citizens prepared to
waive transparency and to give the Chief Executive full power with neither
checks or balances?"' Etzioni concluded, "it is a gross misconception to
argue that public safety measures entail a sacrifice of rights-or vice
versa, that respecting rights entails sacrifices of the common good."9
The right to privacy is a traditional American expectation. At present,
there is an exceptional tension between non-transparent National Security
policies and expectations individuals have regarding civil liberties.
Without judicial oversight, such weapons give free reign to one branch of
government, the executive. As Justice Scalia suggested in Kyllo v. United
States,'0 "the sanctity of the home deserves the highest protections of the
Constitution."" Within the sanctity of the home resides an expectation of
privacy of the heart, soul and mind. Such expectations run contrary to
unsupervised total physical surveillance. Thus, to invade that expectation,
government agents must in some manner work within the Fourth
Amendment and employ a certain level ofjudicial scrutiny. Governmental
3. See How DID THIS HAPPEN? TERRORISM AND THE NEW WAR (James Hoge & Gideon
Rose eds., 2001); ROLAND JACQUARD, IN THE NAME OF OSAMA BIN LADEN: GLOBAL TERRORISM
AND THE BIN LADEN BROTHERHOOD (2002). Justice A. Kennedy, in Roper v. Simmons 543 U.S.
577, 577 (2005) said: "[Tlhe United States now stands alone in a world that has turned its face
against the juvenile death penalty."
4. See, e.g., LON FULLER, ANATOMY OF LAW (Greenwood Press Reprint, New ed. 1977)
(1968); EUGENE WALTER, TERROR AND RESISTANCE (1969); PETER BERGEN, HOLY WAR, INC.
(2001). See also Karma Nabulsi, Just and Unjust War, in CRIMES OF WAR: WHAT THE PUBLIC
SHOULD KNOW 224 (Roy Gutman et al. eds., 1999).
5. Roberta Smith, America Triedto Come To Terms with Terrorism: The UnitedStatesAntiTerrorismandEffective Death PenaltyAct of1996 v. BritishAnti-TerrorismLaw andInternational
Response, 5 CARDOZO INT'L & CoMP. L. 249, 268-69 (1997).
6. AMITAI ETZIONI, How PATRIOTIC IS THE PATRIOT ACT? 9 (2004).
7. Id. at 9.
8. See generally id.
9. Id.at 45.
10. Kyllo v. United States, 533 U.S. 27 (2001).
11. See id. at 31.
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privacy invasions have occurred in the past, but none appear as egregious
as those reported in the New York Times and known as 2the National
Security Agency (NSA) Warrantless Wiretapping Program.
On December 6, 2005, President George W. Bush met in the Oval
Office with New York Times publisher Arthur Sulzberger, Jr., executive
editor Bill Keller, and Washington bureau chief Phil Taubman.' 3 The
President called the meeting to discuss the Times' plan to publish a story
exposing the NSA's covert program that warrantless wiretapping of
citizens.14 The President expressed strong concerns over the national
security implications that would result from publishing the article, 5 and
implored the Times to reconsider. 16 But the free press did not back down. 7
On December 16, 2005, the New York Times published a front page
story by James Risen and Eric Lichtblau pertaining to the NSA program."
The Times article focused upon warrantless eavesdropping and suggested
that the NSA program was an abuse of executive power.' 9 The article,
coming almost one year before mid-term elections, ignited a political
hailstorm.2" Within days, a judge on the Foreign Intelligence Surveillance
Court resigned in protest of the NSA program;2 ' House Democrats
investigated the possibility of impeachment,22 and the Senate demanded
immediate committee hearings.23
In response, the Bush Administration reaffirmed the wiretapping
program and lashed out against any and all critics.24 The Administration
argued that the NSA program was a vital weapon in the war against
12. See Sherman, infra note 13.
13. Gabriel Sherman, Why Times Ran Wiretap Story, Defying Bush, N.Y. OBSERVER (Dec.
26, 2005), available at http://observer.com/printpage.asp?iid=12123&ic=Off+the+Record (last
visited July 12, 2006).
14. Id.
15. Id.
16. Id.
17. Id.
18. Eric Lichtblau & James Risen, Bush Lets U.S. Spy on Callers Without Courts, N.Y.
TIMES, Dec. 16, 2005, at Al.
19. Id.
20. See Carol D. Leonnig & Dafia Linzer, Spy Court Judge Quits in Protest,WASH. POST,
Dec. 20, 2005, at A01.
21. Id.
22. Deb Riechmann, Cheney Says President Has Spying Authority (Dec. 20, 2005), at
http://breitbart.com/news/2005/l 2/ 20/D8EK9JP81.html.
23. Leonnig & Linzer, supra note 20.
24. David Johnston & Neil A. Lewis, Defending Spy Program,Administration Cites Law,
N.Y. TIMES, Dec. 23, 2005, at A20.
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terror." Placing the blame on bureaucratic inefficiency, the Administration
argued that, in fighting the undeclared "war," the Constitution must reside
in the Oval Office, and the NSA program was the only means permitting
the speed and flexibility necessary to give a sufficient warning of an
imminent terrorist attack.26
The controversy has yet to be resolved. Defendants and critics have
assembled along political fault lines and are prepared to do battle over the
program's constitutionality. Yet, for all the partisan posturing, little about
the program is actually known by the public. The Administration's own
statements establish that: (1) the NSA program monitors only international
25. Id.
26. Id. Did the President's advisors overlook the Internet? The global reliance of the Internet
for commerce, communication, and information, legal and illegal is undisputed. Nonetheless,
terrorists, hackers, and organized criminal syndicates also rely on the power and reach of the
Internet to serve nefarious ends. For example, it is now widely known that al-Qaeda operatives used
(and likely continue to use) Internet chat rooms and free, anonymous e-mail accounts to
communicate. Further, captured laptops and debriefs of detained al-Qaeda agents reveal that
terrorist interest in the computerized, Internet-connected components of America's critical
infrastructures was both real and serious. Indeed, perhaps future al-Qaeda terrorist attacks will
include an assault against the cyber backbone of vulnerable critical infrastructures, such as water
supply systems or power generation facilities. Why would terrorists look to the Internet and not the
telephone? The answer is surprisingly simple. Attacks in or through cyberspace comport with the
terrorists modus operadi: asymmetrical warfare. In simple terms, asymmetric warfare is how the
weak fight the strong: guerrilla tactics, suicide bombers, ambushes, and nighttime raids. It is also,
in our 21st century world, the use of the Internet to exploit, disrupt, or incapacitate
disproportionately powerful adversaries. By using cyberspace to conduct intelligence, communicate
clandestinely, and even strike remotely, the Internet has now become a new battleground for
terrorists like al-Qaeda. With this said, asymmetrical, computer attacks from either al-Qaeda types
or teenage hackers do not exist in a vacuum, but are tied to the ubiquitous reliance of the Internet
by individuals as well as businesses. The number of Internet users continues to grow, spurred by
the falling price of computer technology, the growing accessibility of the Internet in rural areas, the
availability of high speed Internet access, and, of course, the overwhelming power and economy
of cyberspace. However, security vulnerabilities have become more frequent and more serious.
Though not the work of terrorists, 2003 witnessed three major worldwide cyber security: Slammer
SQL, MS Blaster, and Sobig. Collectively, these computer worms cost computer users hundreds
of millions of dollars worldwide. Yet, the virulence and effectiveness of Slammer, Blaster, and
Sobig can be traced not only to the originality of their programming code but also to the porous
security that in 2006 continues to plague computers and the Internet worldwide. The overwhelming
majority of personal and business computers still lack firewalls and frequently updated anti-virus
software. Government computers continue to suffer break-ins as well. From the sophisticated
prospect of cyberterrorism to the lone hacker looking for a cheap thrill, those who use the Internet
for illegal ends including sending encrypted terrorist instructions remain undeterred by government
"best practices." There are no conclusive cyber security best practices, yet NSA concentrates upon
wiretaps as a "best practice."
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communications between the United States and a foreign country;2 7 (2) the
program is triggered when a non-judicial "career professional" at the NSA
has reasonable grounds to believe that one of the parties to a
communication is a member of a foreign terrorist organization; 28 (3) the
program targets U.S. citizens living within the United States; 29 and (4) the
program does not require a warrant, before beginning surveillance.3"
We intend this Article to be a commentary on the constitutionality of
the NSA wiretapping program solely as it relates to the warrantless
surveillance of U.S. citizens. We will focus upon the legal history as
established through case law. We will then attempt to rebut the
Administration's arguments in defense of the program, and within this
context we will argue that the program cannot withstand legitimate
constitutional scrutiny. The facts and law simply do not support the socalled NSA program that authorizes the surveillance.
27. Wartime Executive Power and the National Security Agency's Surveillance Authority:
HearingBefore the S. Comm. on the Judiciary,109th Cong. (2006) (statement of Alberto Gonzales,
Attorney General of the United States).
28. Id.
29. Press Briefing from Attorney General Alberto Gonzales and General Michael Hayden,
Principal Deputy Director for National Intelligence (Dec. 19, 2005), available at
http://www.whitehouse.gov/news/releases/2005/12/print/20051219-1.html (last visited July 12,
2006) [hereinafter Press Briefing]. When asked if American citizens were targeted by the NSA
program, Attorney General Gonzales responded:
To the extent that there is a moderate and heavy communication involving an
American citizen, it would be a communication where the other end of the call is
outside the United States and where we believe that either the American citizen
or the person outside the United States is somehow affiliated with al Qaeda.
Id.
30. Wartime Executive Power and the National Security Agency's Surveillance Authority:
Hearing Before the S. Comm. On the Judiciary 109th Cong. (2006) (statement of Alberto Gonzalez,
Attorney General of the United States). In lieu of a warrant, the program is triggered when an NSA
official has reasonable grounds to believe that one party to the communication is affiliated with alQaeda. Id. To be absolutely clear, because the program is initiated and supervised by NSA officials,
there cannot be a warrant involved since there is no judicial integration in the process.
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2006]
DOWN TO THE WIRE: ASSESSING THE CONSTITUTIONALITY
II. WIRETAPPING-THE GENESIS
A. Origins
A recorded directive for warrantless surveillance for national security
purposes was detailed in a letter from President Franklin Delano Roosevelt
to Attorney General Robert Jackson during World War Hl. 3' In that letter,
Roosevelt authorized Jackson to secure sensitive information from any
person suspected of seditious conduct against the United States.32 President
Roosevelt specifically asked Jackson to investigate only non-citizens and
exercise considerable restraint.33
At the time, Roosevelt's directive conformed to the letter of the
existing law, 4 because the U.S. Supreme Court, in 1928, had concluded
3
that executive wiretapping did not impinge on constitutional rights.
a6
1. Olmstead v. United States
The issue in Olmsteadcentered around the propriety of governmental
use of warrantless electronic surveillance equipment.37 The question was
whether the information obtained by electronic surveillance was in
violation of the Fourth Amendment and could not be used as evidence in
any subsequent prosecution. 3 To allow illegally obtained evidence would,
in effect, violate the Fifth Amendment's protection against selfincrimination; for if a person's incriminating statement, intercepted
illegally, could be used against him in a subsequent prosecution, this
would effectively destroy his right to avoid testifying against himmself.
In Olmstead, federal agents used wiretap devices placed on telephone
wires outside the defendant's premises to record incriminating information
that led to the subsequent prosecution of the defendant. 39 No judicial
warrants authorized the wiretaps.'
31. Michael Disabatino, Annotation, Construction andApplication of "NationalSecurity"
Exception to Fourth Amendment Search Warrant Requirement, 39 A.L.R. FED. 646 (2002).
32. Id.
33. Id.
34. Id.
35. Olmstead v. United States, 277 U.S. 438 (1928).
36. Id. at 466.
37. See id. at 438.
38. See id. at 455.
39. Id. at 456-57.
40. See Omstead, 277 U.S. at 456-58.
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The two major issues before the U.S. Supreme Court were: 1) whether
such wiretaps constitute an unreasonable search and seizure in violation
of the Fourth Amendment; and 2) if so, whether the Fifth Amendment
forbids the evidentiary use of such information at trial on the grounds that
such evidence would violate the defendant's right not to testify against
himself.4 ' The Court found that the wiretap did not violate the Fourth
Amendment, and therefore, the information obtained could be used in a
subsequent prosecution without violating the Fifth Amendment.42
The Court noted that a search warrant would be required before officers
could enter the property of a suspect to gather evidence, and that such a
warrant would have to be supported by a showing of probable cause that
the suspect was engaged in illegal activities. Further, the warrant would
have to describe the items sought. 3 Although a warrant would be
necessary for a search and seizure, the Court found that the Constitution
did not protect telephone and telegraph messages:
The reasonable view is that one who installs in his house a
telephone instrument with connecting wires intends to project his
voice to those quite outside, and that the wire beyond his house and
messages while passing over them are not within the protection of
the Fourth Amendment. We think, therefore, that the wiretapping
here disclosed did not amount to search or seizure within the
meaning of the Fourth Amendment.'
Since there was no physical trespass on the defendant's property, the
Court concluded a violation of the Fourth Amendment did not occur.45
Olmsteadthus established the first major criterion by which to judge the
legality of warrantless wiretaps.
Justice Brandeis, in dissent, pointed to the dangers of such a restrictive
view, noting that: "Time works changes, brings into existence new
conditions and purposes. Therefore, a principle to be vital must be capable
' Brandeis also
to wider application than the mischief which gave it birth."46
recognized that new electronic innovation created new means of violating
41.
42.
43.
44.
45.
46.
Id.at 460-62.
Id.at 466-69.
Id. at 458-62.
Id. at 466.
Olmstead, 277 U.S. at 466.
Id. at 472.
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constitutional protections in ways unforeseen by the Framers of the
Constitution."
48 Brandeis argued that it was not
Citing Entrick v. Carrington,
the
physical trespass that constituted the principal offense to the individual,
but the invasion of the individual's privacy that caused the real damage.49
Notwithstanding Brandeis's warning, wire and radio communications were
deemed subject to warrantless interception.5"
In 1934, Congress moved to protect radio and wire communications
from unauthorized interception by enacting section 605 of the
Communications Act.5 This Act forbade any person from intercepting and
divulging interstate wire and radio communications without authorization
from the sender of such messages, or without meeting other enumerated
conditional requirements."
2. Nardone v. UnitedStates53
Since section 605 reads that "no person" may intercept and divulge
protected communications to "any person," a question arose as to the
applicability of these provisions to federal and state officers, as well as to
private individuals. Nardone v. United States' was the first opportunity
the Supreme Court had to address the confusion surrounding section 605.
In Nardone, information was uncovered by federal officers through a
warrantless wiretap on the defendant's conversations.55 The Court held that
such evidence was inadmissible in a subsequent prosecution of the
defendant. The fact that the eavesdroppers were federal officers did not
sway the Court, which said that the statute "is written so as to include
within its sweep federal officers as well as others."56
Nardone was the Court's attempt to settle the question of the
applicability of section 605 to state and federal officers. The case was
reheard in 1939.7 In the second Nardone58 case, the Court ruled that even
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
Id.at 473.
19 How. St. Tr. 1030 (1765).
Olmstead, 277 U.S. at 474-79.
See supra text accompanying notes 37-45.
47 U.S.C. § 605 (1934).
Nardone v. United States, 302 U.S. 379 (1937).
Id.at 379.
Id.; see also Benati v. United States, 355 U.S. 96 (1957).
Nardone, 302 U.S. at 379, 381-82.
Id.at 384.
Id.
Nardone v. United States, 308 U.S. 338 (1939).
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a paraphrased account ofthe intercepted communications was inadmissible
evidence, when the interception was in violation of section 605."9 The
Court specified that although a paraphrased account was not a literal
divulgence of the precise communications intercepted, nevertheless, such
warrantless interception and use was prohibited by the statute and the
account was inadmissible as evidence.6'
The government concluded that at the time President Roosevelt issued
the directive, the government, utilizing war powers, could wiretap
telephone communications without prior judicial scrutiny. 61 However,
President Roosevelt could not legally introduce any of the collected
information into trial. 62 The Nardone63 Court concluded that the Federal
Communications Act of 1934 prohibited individuals from collecting or
distributing information collected via electronic surveillance. 64 The
government conceded that Nardone prohibited any information collected
in the course of electronic surveillance from being offered into evidence
at trial. 65 There was, however, nothing to prevent police agencies from
utilizing wiretaps for national security purposes as long as the information
was not "divulged" in a court proceeding.6
67
3. Katz v. UnitedStates
In Katz v. UnitedStates,6 the post-war U.S. Supreme Court revisited
expectations of privacy within the context of wiretapping jurisprudence.
Overruling Olmstead, the Supreme Court found the use of warrantless
electronic surveillance in criminal investigations was per se unreasonable
under the Fourth Amendment.69 Without a warrant, wiretapping and
searches could only be legally conducted pursuant to a "few welldelineated [Fourth Amendment] exceptions."70
59. Id. at 339-41.
60. Id.at 340-41.
61. See Disabatino, supra note 31.
62. See Jennifer L. Sullivan, From "ThePurpose"to "A SignificantPurpose:"Assessing the
Constitutionalityof the ForeignIntelligence SurveillanceAct Under the FourthAmendment, 19
NOTRE DAME J.L. 375, 383 (2005).
63. Nardone, 302 U.S. at 379.
64. Id at 382.
65. See Sullivan, supranote 62, at 384.
66. Id.
67. 389 U.S. 347, 357 (1967).
68. Id.
69. Id. at 375.
70. Id.
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In Katz, the Court rejected the traditional notion that only private
property could be protected by the Fourth Amendment and held that
"[T]he Fourth Amendment protects people, not places."7 In so doing, the
Court reversed the defendant's conviction for transmitting wagering
information by telephone in violation of a federal statute.7 2 The FBI had
placed a recording device outside the phone booth that recorded the
defendant's end of telephone conversations without first getting a
warrant-leading to the defendant's conviction.73 The U.S. Supreme Court
reversed the decision of the lower court, finding that the surveillance failed
to meet the preconditions required by the Fourth Amendment.7 4
The U.S. Supreme Court's reasoning in Katz, however, turned on the
government's failure to satisfy the preconditions of the Fourth Amendment
in securing a warrant before conducting surveillance, rather than
sanctioning the government for conducting clandestine surveillance. The
Court has long held that the Fourth Amendment protects individuals
against police officers-particularly those officers engaged in the often
competitive enterprise of ferreting out a crime-from prematurely making
the inferences required to determine probable cause for a search under the
Fourth Amendment.7" In Katz, the Court reversed the defendant's
conviction because the officers did not seek a "neutral and detached
magistrate" to make the probable cause determination in accordance with
prior case law in Coolidge v. New Hampshire.76
However, in footnote 23 of Katz, the limitations upon the Court
become apparent. The Court was divided as to whether the Fourth
Amendment contemplated a national security exception.77 The majority
specifically declined to consider whether such an exception existed.78 In
his concurrence, Justice White stated that the executive branch did not
need a warrant if the President determined that there was a threat to
national security.79 In a separate concurrence, Justice Douglas stated that
the executive branch required a warrant because neither the President nor
the Attorney General was capable of acting as a detached and neutral
magistrate, as the Fourth Amendment requires.80 Therefore, as of the Katz
71.
72.
73.
74.
75.
76.
77.
78.
79.
80.
Id.at 351.
Katz, 389 U.S. at 359.
Id.at 349-50.
Id.at 359.
Johnson v. United States, 333 U.S. 10, 14 (1948).
403 U.S. 443, 453 (1971).
See Disabatino, supra note 31.
Id.
Id.
Id.
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decision, the U.S. Supreme Court had yet to issue a coherent precedent on
warrantless surveillance for national security purposes.
Codifying the Katz standard, Congress passed title II of the Omnibus
Crime Control and Safe Streets Act (OCCA). 1 Under OCCA, electronic
surveillance could only be conducted with a warrant.8 2 Such a warrant
could be issued if a judge found probable cause that "an individual is
committing, has committed, or is about to commit a particular
offense . . ."" However, like Katz, OCCA did not place limits on the
President's discretion to use warrantless wiretaps for national security
s Taking full advantage of the confusion, the executive
purposes.8
branch-led by Lyndon B. Johnson and then Richard Nixon--continued
warrantless surveillance as if the executive branch possessed complete and
unfettered autonomy in national security missions."
B. Keith and the Legality of Wiretappingfor Domestic Threats to
NationalSecurity
In an effort to clarify the legality of warrantless surveillance, the U.S.
Supreme Court considered whether the Fourth Amendment contained a
national security exception. 6 In UnitedStates v. U.S. DistrictCourtfor the
Eastern District of Michigan (Keith), the government, without prior
judicial review, intercepted communications of an individual who
conspired to bomb a federal building. 7 The government argued that
warrantless surveillance was necessary to protect the country from
"attempts of domestic organizationsto attack and subvert the existing
[government] structure. ' 8 8 In addition, the government urged that (1) the
judicial branch did not have the practical knowledge to determine whether
probable cause existed to believe that surveillance was necessary to protect
national security and (2) that the inclusion of the judicial branch would
result in leaks of sensitive information to the public. 9 The Keith Court
agreed that the "covertness and complexity"9 of political subversives and
81.
82.
83.
84.
85.
86.
87.
88.
89.
90.
See Sullivan, supranote 62, at 386.
Id. (quoting 18 U.S.C. § 3518(3)(a) as amended (2000)).
See id.
See id.
See United States v. U.S. Dist. Ct. (Keith), 407 U.S. 297, 311 n.10 (1972).
Id.at 299.
Id.at 299-302.
Id.at 308-09.
Id.at 319.
See Keith, 407 U.S. at 311.
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their "dependency . . . upon the telephone"'" makes wiretapping an
effective weapon.9 2 However, the Keith court was profoundly apprehensive
of the invasive nature of electronic surveillance.93 Recognizing that the
"broader spirit" of the Fourth Amendment was to shield private
communications from unreasonable surveillance,94 the Keith Court
analyzed two central inquiries relating to domestic national security: (1)
"whether the needs of citizens for privacy and free expression may not be
better protected by requiring a warrant" 95 and (2) "whether a warrant
requirement would unduly frustrate the efforts of the government to
'
protect itself."96
In response to the first Keith inquiry, the Court held that basic
constitutional freedoms are best served through the distinct function of the
different branches of government.97 According to the Court, judicial
review of executive action by a neutral and detached magistrate is the
touchstone of preserving privacy and free expression.9" As such, the proper
function of the branches is for the executive branch to seek a warrant and
for the judicial branch to approve the warrant prior to the search.99
Specifically citing Justice Douglas's concurrence in Katz, the Court
explained that the Fourth Amendment did not contemplate the government
as a neutral and detached magistrate because of the government's
responsibility to prosecute and investigate criminal behavior.' 0 Thus, the
Court held that citizens' needs for privacy and free expression would be
best served by securing a warrant through the judicial branch.'0°
In response to the second Keith question, the Court recognized the
validity of the government's argument that warrantless surveillance was
an extremely efficient method of investigation.0 2 However, the Court was
not convinced that the judicial branch was inept to analyze domestic
national security threats. 3 Rather, the Court responded that the judicial
branch was perfectly competent to evaluate whether a warrant was needed
91.
92.
93.
94.
95.
96.
97.
98.
99.
100.
Id.
Id.
Id.
Id. at313.
See Keith, 407 U.S. at 315.
Id.
Id. at317.
Id. at318.
Id. at317.
Keith, 407 U.S. at 317.
101. See id. at 320.
102. See id. at 319.
103. Id. at 320.
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because the court regularly dealt with sensitive and complex issues central
to domestic national security. Furthermore, the Court found that the
involvement of the judicial branch did not create domestic national
security vulnerabilities."°
Concluding the Keith analysis, the Court held that domestic
government surveillance must comport to the requirements of the Fourth
Amendment. 5 Specifically, the Court held that the government must seek
the approval of the judicial branch through a warrant prior to the initiation
of homeland electronic surveillance.0 6 However, the Court expressly
reserved judgment on whether the Keith analysis applied to the "activities
of foreign powers or their agents"'0 7 outside of the United States.
C. Attempts to Extend the Keith Doctrine to Foreign Threats
The refusal to consider whether the Fourth Amendment contemplated
a foreign national security exemption prompted lower courts to fill in the
gap.'08 In United States v. Brown," 9 the Fifth Circuit Court of Appeals
allowed warrantless electronic surveillance for the purpose of protecting
national security from a foreign threat."0 Accepting the Brown precedent,
the Third Circuit, in UnitedStates v. Butenko,"' agreed that the President
had the authority to conduct warrantless surveillance against foreign
threats to national security. 1 2 However, the Butenko court limited the
Brown decision by stating that the primary purpose of the surveillance
must be for foreign security threats, as opposed to the collection of
incriminating information for criminal prosecution." 3
Casting the viability ofBrown and Butenko into serious doubt, the U.S.
Court of Appeals for the D.C. Circuit strongly questioned the existence of
a foreign national security exemption in Zweibon v. Mitchell."4 In
Zweibon, the government used warrantless surveillance against the Jewish
Defense League (JDL), an entity composed of American citizens, because
the JDL sought to interrupt U.S.-Soviet diplomatic relations through both
104.
105.
106.
107.
108.
109.
110.
111.
112.
113.
114.
Id. at 320-21.
Keith, 407 U.S. at 321.
See id.
Id. at 321-22.
See Sullivan, supra note 62, at 388-89.
484 F.2d 418 (5th Cir. 1973).
Id. at 426.
494 F.2d 593 (3d Cir. 1974).
Id.at605.
Id. at606.
516 F.2d 594 (D.C. Cir. 1975).
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peaceful and violent measures." 5 While the Zweibon court disfavored any
sort of warrantless surveillance, it did not go so far as to deny the existence
of a foreign national security exemption.1 6 Rather, the Zweibon court held
that the government violated the Fourth Amendment's protections because
the JDL was a domestic organization and was not affiliated with any
foreign power." 7 As such, the Zweibon decision put a stop to the rubberstamping of warrantless surveillance afforded to the executive branch in
Brown and Butenko. This outcome proved to be quite alarming to the
Department of Justice as the executive branch previously had few
obstacles to
conducting electronic surveillance for foreign security
8
purposes."
At about the same time as the Zweibon court heightened judicial
scrutiny of warrantless surveillance, the Senate Select Committee to Study
Governmental Operations chaired by Senator Frank Church" 9 (the
"Church Committee") voted "to conduct an investigation and study of
governmental operations with respect to intelligence activities and of the
extent, if any, to which illegal, improper, or unethical activities were
engaged in by any agency of the Federal Government."' 2 ° The
Committee's investigation lasted fifteen months and addressed an
exhaustive list of issues.' 2 ' The Committee's report contained thousands
of pages detailing highly disturbing, questionable, and illegal, activities
and programs. These programs targeted U.S. and foreign citizens
domestically and abroad, by agencies such as the CIA, FBI, and NSA.'22
In response to the question of warrantless surveillance, the Committee
reported:
The courts have also not confronted intelligence issues. As the
Supreme Court noted in 1972 in commenting on warrantless
electronic surveillance, "The practice has been permitted by
successive presidents for more than a quarter of a century without
115. Id. at 607.
116. Id. at 614.
117. Id.
118. See Richard Seamon & William Gardner, The PatriotAct and the Wall Between Foreign
Intelligence and Law Enforcement, 28 HARv. J.L. & PUB. POL'Y 319, 334 (2005).
119. Frank Church Papers, Boise State University, Special Collections Department, Albertsons
Library, availableat http://Iibrary.boisestate.edu/special/church/church.htm (last visited Oct. 3 1,
2006).
120. S. Res. 21, 94th Cong. (1975) (enacted).
121.
DONALD J. MUSCH, CIVIL LIBERTIES AND THE FOREIGN INTELUGENCE SURVEILLANCE 3
(Donald J. Musch ed., 2003).
122. Frank Church Papers, supra note 119.
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guidance12 3 from the Congress or a definitive decision by the
Court.'
The Church Committee then issued as a major finding:
The intelligence community has employed surreptitious collection
techniques-mail opening, surreptitious entries, informants, and
traditional and highly sophisticated forms of electronic
surveillance-to achieve its overly broad intelligence targeting and
collection objectives ... 124
The Committee added that the legal proceedings and standards regulating
the use of such surreptitious collection techniques were insufficient. 125 In
response, the Church Committee recommended additional rules regarding
domestic intelligence activities; these recommendations "influenced the
passage of the Foreign Intelligence Surveillance Act ("FISA") of 1978. ' '126
D. The Legislative Response: FISA
The abuses brought to light by the Church Committee included the
collection of personal and political information from individuals and
organizations including Dr. Martin Luther King, Jr. and the Women's
Liberation Movement. 27 The Committee's recommendations and its
conclusion that the information collected had no legitimate governmental
purpose 11 resulted in a public outcry for reform.129 In fact, the government
often collected information simply for the purpose of "stifling domestic
dissent [by] giving the incumbent President politically useful information
about the opponents .... ,,30
With the public incensed by the Church Committee Reports and the
judiciary eager to abridge executive surveillance power, Congress set out
to regulate the executive use of warrantless surveillance.' 31 Congress's
efforts culminated in the passage of the FISA, which authorized the
executive branch, after securing a warrant, to conduct electronic
123. MUSCH, supra note 121, at 3.
124. Id. at 4.
125.
126.
127.
128.
129.
130.
131.
See id.
Id.
Seaman & Gardner, supra note 118, at 335.
Id.
Id. at 334.
See id. at 335.
Id. at 334-36.
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surveillance of "foreign powers" and "agents of foreign powers" for
"foreign intelligence information."' 32
FISA created a specialized court system to grant authorization to
conduct electronic surveillance of foreign powers and their agents for
foreign intelligence gathering purposes.'33 FISA authorizes the Chief
Justice of the U.S. Supreme Court to designate seven U.S. district court
judges to constitute a lower court (FISA Court), and to designate three
judges from U.S. district courts or U.S. courts of appeal to constitute a
court of review (FISA Court of Review).'34 The FISA Court of Review has
jurisdiction to review a FISA Court denial of an application submitted
under the Act.' 35 If the FISA Court of Review determines that the denial
was proper, the U.S. Supreme Court then has jurisdiction to review the
decision.'36
To obtain a warrant under FISA, the executive branch must appeal to
the Foreign Intelligence Surveillance Court (FISC), a specially created
court of review consisting of federal district court judges.'37 Under FISA,
the FISC will allow surveillance if there is probable cause to believe that
the "purpose of the surveillance is to obtain foreign intelligence
information." 138 In the event of a national emergency, 139 the President may
authorize immediate warrantless surveillance provided that the executive
obtains a warrant within seventy-two hours. 40
With a warrant requirement firmly in place, FISA's approach to
surveillance for foreign intelligence has been repeatedly upheld throughout
the federal circuits. 4 ' In United States v. Duggan,'4 2 the Second Circuit
Court of Appeals held that the warrant mechanism in FISA was "a
constitutionally adequate balancing of the individual's Fourth Amendment
rights against the nation's need to obtain foreign intelligence
132. 50 U.S.C. § 1804(a)(4)(A) (1978).
133. Id. § 1803(a).
134. Id. § 1803(a), (b).
135. Id. § 1803(b).
136. Id.
137. See 50 U.S.C. § 1803(a).
138. See id. § 1804(a)(7)(B). FISA's probable cause standard was later amended so that law
enforcement officials need only demonstrate that "a significant purpose of the investigation" be for
foreign security purposes. See id. (amended 2001).
139. See generallyIn re Sealed Case No. 02-001,02-002, 310 F.3d 717 (Foreign Int. Sur. Ct.
Rev. 2002) (analyzing this issue).
140. See 50 U.S.C. § 1804(f).
141. See Sullivan, supra note 62, at 393.
142. 743 F.2d 59 (2d Cir. 1984).
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information."' 43 Likewise, in UnitedStates v. Pelton,'" the Fourth Circuit
Court of Appeals held that FISA's reduced probable cause standard was
"sufficient protection for the rights guaranteed by the Fourth
Amendment"' 45 because of the paramount importance of governmental
interests in the context of foreign security.'"
With FISA looming in the background, the Fourth Circuit Court of
Appeals revisited the familiar issue of executive warrantless surveillance
for foreign security threats in United States v. Truong. 47 In Truong,
outside the authority of FISA, and without a warrant, the government
wiretapped David Truong, a Vietnamese citizen suspected of passing
classified information to the Socialist Republic of Vietnam.14' Deciding
the extent that warrantless surveillance should be allowed for foreign
national security, the Truong court reexamined the two central inquiries in
Keith that were relevant to domestic national security threats: (1) whether
the needs of citizens would be better protected by requiring a warrant and
(2) whether a warrant requirement would
unduly frustrate the
49
government's national security prerogatives.
Responding to the first prong of the Keith test, the Truong court
recognized the substantial privacy interests implicated by warrantless
surveillance.15 °However, the Truong court stated that the intrusion on civil
liberties is justified when (1) the surveillance is limited to "foreign powers,
their agents, and their collaborators"' 5 ' and (2) the surveillance is primarily
'
to "obtain foreign intelligence from foreign powers or their assistants. "152
Responding to the second prong, the Truong court stated that the
warrant requirement would add an unnecessary procedural hurdle that
would impede the response to foreign threats.' 53 Further, the Truong court
reasoned that the executive's "unparalleled expertise" in foreign affairs
made the executive branch the sole entity capable of evaluating the gravity
of foreign security threats.' 54 Finally, the Truong court stated that the
143.
144.
145.
146.
147.
148.
149.
150.
151.
152.
153.
154.
Id. at 73.
835 F.2d 59 (2d Cir. 1987).
Id. at 1075.
Id.
629 F.2d 908, 911 (4th Cir. 1980).
Id.
Id. at 913.
Id. at 916.
Id.
Truong, 629 F.2d at 916.
Id. at914.
Id.
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Constitution designates
the executive as the primary authority in governing
155
international affairs.
As a final matter, the Truong court recognized that even where a
warrant is unnecessary, the Fourth Amendment demands that the
surveillance be reasonable in light of the circumstances.' 56 The Truong
court drew the reasonableness line at the point where David Truong
became the target of a criminal investigation, and held that warrantless
surveillance of foreign security threats was reasonable up to the point
where the foreign security threat could be fully evaluated.'57 According to
the Truong court, the surveillance is no longer reasonable at the point
where the individual becomes the subject of a criminal prosecution.'58
E. September I I th and the Genesis of the NSA Program
On September 11, 2001, the al-Qaeda terrorist network launched the
most devastating attack ever witnessed on American soil.'5 9 Decimating
critical U.S. economic and military interests, nineteen al-Qaeda terrorists
hijacked and crashed four jetliners into the two World Trade Center
Towers, the Pentagon, and a field in Pennsylvania."' ° In the span of one
hour, the terrorists killed nearly three thousand people, devastated the
nation's financial pulse, and awakened America to its own vulnerability. 6 '
Seven days after the September 11th attacks, Congress passed the
Authorization for Use of Military Force (AUMF). 162 In the AUMF,
155. Id. at914.
156. Id. at916.
157. Truong, 629 F.2d at 916. Truong alleged that the search was unreasonable in light of the
circumstances because the government intercepted all of his personal communications for over 260
days. See id. at 916-17. The Truong court held that the search was reasonable up to the point when
FBI investigators identified Truong's contact on the other side of the communications. Id. at 916
n.6. After that point, Truong became the target of a criminal investigation because the foreign
security threat had been fully evaluated. See id. at 915-17.
158. Id.
159. Letter from the Department of Justice to Members of Congress, Legal Authorities
Supporting the Activities of the NationalSecurity Agency Describedby the President 1 (Jan. 19,
2006) [hereinafter Department of Justice], available at http://www.globalsecurity.org/intell/
library/reports/2006/nsa-authorities doj060119.htm.
160. See Sullivan, supra note 62, at 380.
161. Id.
162. Authorization for Use ofMilitary Force 50 U.S.C. § 1541 (2001). Section 2 of the AUMF
provides, in relevant part, that:
[T]he President is authorized to use all necessary and appropriate force against
those nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on September 11, 2001, or
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Congress granted the President the authorization to "use all necessary and
appropriate force"' 6 3 against those responsible for the September 11th
attacks."6 The government's response to September 11 th was swift and
multifaceted. 65
' The United States immmediately accused the Taliban, the
ruling government of Afghanistan, of harboring the al-Qaeda operatives
responsible for the September 11th assault.'" After the Taliban refused to
hand over al-Qaeda fugitives, the United States led an offense against the
Taliban government beginning on October 7,2001.167 Operation Enduring
Freedom, the U.S. military response to the September 1Ith attacks, was
swift and ferocious. 68 Ending major combat operations less than a year
after the original invasion, the United States began to embark
69 on the
arduous task of building a democracy in war-torn Afghanistan.
But the global war against terrorism required action in the homeland as
well. In an effort to rectify legislative deficiencies in law enforcement and
intelligence collection, U.S. lawmakers passed the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (Patriot Act).170 The Patriot
Act lowered the standard of probable cause under FISA so that a law
enforcement official could obtain a warrant upon a showing of probable
cause that "a significant purpose of the investigation" was for foreign
surveillance purposes. '7' This lower standard effectively removed the
barrier that previously separated criminal investigations from foreign
intelligence surveillance under FISA. 72
harbored such organizations or persons, in order to prevent any future acts of
international terrorism against the United States by such nations, organizations or
persons.
50 U.S.C. § 1541(2)(a). Further, section 2 of the AUMF provides, in relevant part, that: "Consistent
with [the War Powers Resolution], the Congress declares that this section is intended to constitute
specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution."
50 U.S.C. § 1541(2)(b)(1).
163. Supra note 162.
164. Supra note 162.
165. See Sullivan, supra note 62, at 396.
166. Edward Epstein, U.S. Seizes Skies OverAfghanistan, S.F. CHRON., Oct. 10, 2001, at Al.
167. Id.
168. Bill Nichols, US. Controls Afghan Skies, USA TODAY, Oct. 10, 2001, at IA.
169. Larry Copeland, Afghans OptimisticAssembly Will End Chaos, USA TODAY, June 10,
2002, at IA.
170. See Sullivan, supra note 62, at 380-83.
171. 50 U.S.C. § 1804(a)(7)(B) (amended 2001).
172. See Sullivan, supra note 62, at 401.
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The controversy regarding the NSA program began on December 6,
2005-mere hours after the New York Times published its original article
on the NSA. 173 Yet, the NSA wiretapping program had been in existence
since President Bush authorized the program in the weeks following the
September 11 th attacks.174 The program remains classified, and few critical
details have come to light. According to the Bush Administration's
175
statements, the NSA program: (1) intercepts electronic communications;
(2) intercepts communications of American citizens inside the United
States; 176 (3) operates without the "classical" definition of probable
cause; 177 and (4) operates without a warrant.178 With these facts in mind,
the purpose of the following analysis is to evaluate the most pressing
question posed by the NSA program: Does the President have the authority
to use warrantless surveillance against American citizens living in the
homeland?
II. THE PRESIDENT LACKS BOTH THE CONGRESSIONAL AUTHORIZATION
AND INHERENT AUTHORITY TO EFFECTUATE THE NSA PROGRAM
On January 19, 2006, the Department of Justice submitted a letter to
congressional leaders on behalf of President Bush detailing the
Administration's defense of the NSA program. "9The letter is the fullest,
most complete defense the Administration has offered regarding the NSA
program. In the letter, the President offers two bases of support for the
NSA program: (1) Congress authorized the President to wiretap American
citizens without a warrant through the passage of the AUMF; and (2) the
173. See Leonnig & Linzer, supra note 20.
174. See President's Radio Address, 41 Weekly Comp. Pres. Doc. 1880 (Dec. 17, 2005),
available at http://www.whitehouse. gov/news/releases/2005/12/20051217.html (last visited Oct.
19, 2006). In his weekly radio address, the President said: "In the weeks following the terrorist
attacks on our Nation, I authorized the National Security Agency, consistent with U.S. law and the
Constitution, to intercept the international communications of people with known links to al-Qaeda
and related terrorist organizations." Id.
175. Press Briefing, supranote 29.
176. Id.
177. Id. According to Attorney General Gonzales, the NSA program intercepts
communications where there is a "reasonable basis to conclude that one party to the communication
is a member of al-Qaeda, affiliated with al-Qaeda, or a member of an organization affiliated with
al-Qaeda, or working in support of al-Qaeda." Id.
178. Id.
179. Department of Justice, supra note 159, at 1.
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President has the inherent80 authority as Commander-in-Chief to conduct
warrantless surveillance.1
However, these justifications may not withstand a vigorous
constitutional analysis.. While President Bush may believe he has the
authority for the NSA program, case law. in the area of warrantless
surveillance does not support the President's argument.'' Congress did not
explicitly authorize the President to conduct warrantless surveillance of
American citizens by the passage of the AUMF.182 Furthermore, a careful
consideration of the principles articulated in Keith, public policy, and in
particular its underlying concerns, reveals that the President does not have
the inherent authority to conduct warrantless surveillance. Because the
President has only questionable congressional or inherent executive
authority, the NSA program is unlikely to survive a constitutional
challenge.
A. The PresidentLacks CongressionalAuthority to Effectuate the
NSA Program
President Bush's principal assertion in defense of the NSA program is
that Congress unequivocally authorized the executive branch to effectuate
the program through the passage of the AUMF. 183 Relying on Hamdi v.
Rumsfeld,184 the President argues that the AUMF provides explicit
statutory authority to conduct warrantless surveillance of American
citizens who have a link to al-Qaeda. 8 5 In Hamdi, the U.S. Supreme Court
considered whether the text of the AUMF enabled the President to capture
and detain enemy combatants.8 6 Yasser Hamdi, an American citizen
allegedly operating as an enemy combatant, was captured and detained
after U.S. Forces found him on a battlefield in Afghanistan.1 7 Hamdi
challenged his detention, arguing that Congress had previously passed a
law stating that "[n]o citizen shall be imprisoned or otherwise detained by
the United States except pursuant to an Act of Congress."'8 8 As such,
180. Id.
181. See infra text accompanying notes 241-54.
182. See supra text accompanying notes 183-228.
183. Department of Justice, supra note 159, at 12.
184. 542 U.S. 507 (2004).
185. See Department of Justice, supranote 159.
186. See Hamdi, 542 U.S. at 516.
187. Id. at 513.
188. See id. at 517 (emphasis added) (quoting 18 U.S.C. § 4001(a)).
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Hamdi contended that the limited text of the AUMF 18 9 was an insufficient
basis for his detention. 190 Rejecting Hamdi's argument, the Supreme Court
interpreted the clause in the AUMF that permitted the President to use "all
necessary and appropriate force" to mean that the AUMF authorized the
President to engage in all "fundamental incident[s] of waging war...."'91
Relying on the Geneva Convention Relative to the Treatment of Prisoners
of War and the Hague Convention on Laws and Customs of War on Land,
the Court held that the detention of enemy combatants was a fundamental
incident of warfare.' 92 Accordingly, the text of the AUMF "clearly and
unmistakably authorized" the President to detain Hamdi. 193
President Bush interprets Hamdi to mean that the AUMF authorizes the
executive branch to conduct all activities that are fundamental incidents of
waging war.' 94 Citing a robust history of American warfare,' 9 5 the
President contends that intelligence collection is a fundamental incident of
war. 96 Since the NSA program is a form of intelligence collection, the
President insists
that the AUMF authorizes him to conduct warrantless
97
surveillance.
189. See supratext accompanying note 162. According to the Court, the President derived his
authority to detain enemy combatants pursuant AUMF language that states the President may use
"all necessary and appropriate force" against the "nations, organization, or persons" associated
with
the September 1 th attacks. Id.
190. See Hamdi, 542 U.S. at 517.
191. Id. at 519. Writing for a plurality of the Court, Justice O'Connor stated:
In light of these principles, it is of no moment that the AUMF does not use
specific language of detention. Because detention to prevent a combatant's return
to the battlefield is a fundamental incident of waging war, in permitting the use of
"necessary and appropriate force," Congress has clearly and unmistakably
authorized detention in the narrow circumstances considered here.
Id.
192.
193.
194.
195.
196.
Id.at 519-20.
Id. at 519.
See Department of Justice, supra note 159.
See infra text accompanying notes 202-04.
See Department of Justice, supra note 159. The Department of Justice Brief states that
the interception of communications has been an American war tactic since the Revolutionary War.
Specifically, "George Washington received and used to his advantage reports from American
intelligence agents on British military strength, British strategic intentions, and British estimates
of American strength. One source of Washington's intelligence was intercepted British mail." Id.
(citations omitted).
197. Id.
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However, the President may have misplaced his reliance in Hamdi. The
conduct might only be applicable in the context of a battlefield. 9 ' In
Hamdi, Justice O'Connor clarified the scope of the opinion:
[W]e understand Congress' grant of authority for the use of
"necessary and appropriate force" to include the authority to detain
for the duration of the relevant conflict, and our understanding is
based on longstanding law-of-war principles. If the practical
circumstances of a given conflict are entirely unlike those of the
conflicts that informed the development of the law of war, that
understanding may unravel.'99
Thus, while Hamdi surely applies to tactics on a battlefield in Afghanistan,
the scope of Hamdi may not reach endeavors that involve American
civilians.2 °°
In evaluating the NSA program, the application of Hamdi turns on
deciding if the "practical circumstances" of the present war on terror are
similar enough to those found in the prior, conventional conflicts that
formulated the rules of warfare.2 ' The President argues that intelligence
collection is the practical circumstance common to both the present war
and conventional warfare. Because intelligence collection has been a vital
feature of many wars, the President further asserts that the use of such
tactics in the present conflict triggers the application of the Hamdi rule.20 2
Beginning with the Revolutionary War, the President notes that various
intelligence collection methods have been used throughout American
warfare.2 3 For example, George Washington intercepted British mail,2"
Civil War generals frequently wiretapped telegraph lines,20 5 and President
Roosevelt authorized warrantless wiretapping against persons suspected
of espionage.20 6 Therefore, the Bush Administration argues that the NSA
program falls in line with the Hamdi analysis because the larger context
198. Memorandum from Elizabeth B. Bazan & Jennifer K. Elsea, Congressional Research
Service, Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign
Intelligence Information 34 (Jan. 5, 2006) [hereinafter Bazan & Elsea], available at http://news.
findlaw.com/hdocs/docs/nsa/crslO506rpt.pdf (last visited July 12, 2006).
199. Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004).
200. Id.
201. See id.
202. See Department of Justice, supra note 159, at 14-16.
203. Id.
204. Id. at 15-16.
205. Id.
206. Id.
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of intelligence collection has been used throughout the history of
American warfare.2" 7
However, the "practical circumstances" of a war against terrorism are
quite unlike those of the "conflicts that informed the development of the
law of war."2 8 The war against terror is unlike any previous American
war. It is a war without borders, without a specific opposing government,
without uniforms, and without a clearly discernable enemy acting under
color of state. As such, Hamdi's application to the less conventional
circumstances of the current conflict, especially those conducted within the
United States, may unravel the "understanding" of Hamdi.2 °9 Thus, even
if the NSA program were found to be a "fundamental incident of war"
under Hamdi, the program still may be illegal because Hamdi likely has
no application to tactics waged inside the homeland and far away from the
battlefield.
Even if Hamdi were found to control the analysis of the NSA program,
it is inconclusive whether warrantless surveillance of American citizens
meets the AUMF's requirement that the tactic be a fundamental incident
of war.2"0 The Hamdi court concluded that the detention of enemy
combatants was a fundamental incident of war by referring to the explicit
text of both the Geneva Convention and the Hague Convention.2"'
However, President Bush has not cited any authority similar in statute that
suggests that warrantless surveillance of American citizens is a
fundamental incident of war.2" 2 Moreover, the President has not cited any
international regulation of warfare that suggests that any interception of
communications is a fundamental incident of war.2 3
Additionally, even if Hamdi were found to control the constitutional
analysis of the NSA program, and warrantless surveillance of American
citizens was found to be a fundamental incident of war, the President
207. See Department of Justice, supra note 159, at 14-16.
208. See Bazan & Elsea, supra note 198, at 33 (citing Hamdi (O'Connor, J., concurring).
209. Id
210. Beth Nolan et al., On NSA Spying: A Letter to Congress, 53 N.Y. REV. BOoKS (Feb. 9,
2006), availableat http://www. nybooks.com/articles/1 8650 (last visited Oct. 19, 2006). As stated
by the letter from constitutional scholars: "[i]t is one thing, however, to say that foreign battlefield
capture of enemy combatants is an incident of waging war that Congress intended to authorize. It
is another matter entirely to treat unchecked warrantless domestic spying as included in that
authorization...- Id.
211. Hamdi v. Rumsfeld, 542 U.S. 507, 520 (2004).
212. Bazan & Elsea, supra note 198, at 35.
213. Id. To be fair, there is little doubt that intelligence collection on the battlefield is a
fundamental incident of war. But again, the NSA program is a different situation because it
involves the surveillance of American citizens on American soil. Id.
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would still not have congressional authorization.2 ' Congress, through
FISA, has already expressly addressed the question of wartime warrantless
surveillance, stating that a President may authorize electronic surveillance
for up to fifteen days following a declaration of war.215 The Supreme Court
has consistently held that express and "carefully drawn" statutes supersede
general statutes in the event of a conflict.2" 6 The President insists that the
"necessary and appropriate" clause of the AUMF provides all the
necessary authority to conduct unlimited wartime warrantless
surveillance-a highly technical, complex, and controversial legal issue.
In terms of specificity, the AUMF simply does not compare with FISA.217
FISA expressly establishes procedures for domestic wartime surveillance
whereas the AUMF broadly grants general authority. 2 8 Because FISA
specifically establishes procedures for warrantless electronic surveillance,
FISA must prevail over the NSA program.
The exclusivity provision contained in section 2511 (2)(f) of title Ill of
the OCCA further undermines the President's arguments.2" 9 There,
Congress identified FISA 220 as the "exclusive means by which electronic
surveillance ...and the interception of domestic wire, oral, and
electronic communications may be conducted. 22 1 In the Department of
214. See Nolan et al., supra note 210, at 3-4.
215. Id.
216. See Int'l Paper Co. v. Ouelette, 479 U.S. 484, 493-94 (1987). In Int'l Paper,the U.S.
Supreme Court refused to believe that a statute drawn specifically to address a particular purpose
could be thrown into question by a general statutory provision. Id.
217. See Nolan et al., supra note 210, at 3.
218. Id. Under FISA, "[t]he President, through the Attorney General, may authorize electronic
surveillance without a court order under this subchapter to acquire foreign intelligence information
for a period not to exceed fifteen calendar days following a declaration of war by the Congress."
50 U.S.C. § 1811.
219. See supra text accompanying notes 81-83.
220. See Nolan et al., supra note 210, at 3.
221. 18 U.S.C. § 2511 (2)(f) (amended 2002). Section (2)(f), reproduced in full, provides:
Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705
of the Communications Act of 1934, shall be deemed to affect the acquisition by
the United States Government of foreign intelligence information from
international or foreign communications, or foreign intelligence activities
conducted in accordance with otherwise applicable Federal law involving a
foreign electronic communications system, utilizing a means other than electronic
surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act
of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence
Surveillance Act of 1978 shall be the exclusive means by which electronic
surveillance, as defined in section 101 of such Act, and the interception of
domestic wire, oral, and electronic communications may be conducted.
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Justice letter, the President claims that the OCCA exclusivity provision
supports the legality of the NSA program:
By expressly and broadly excepting from its prohibition electronic
surveillance undertaken "as authorized by statute," section 109 of
FISA [ 18 U.S.C. 1809] permits an exception to the "procedures" of
FISA referred to in 18 U.S.C. § 251 1(2)(f) where authorized by
another statute, even if the other authorizing statute does not
specifically amend section 2511 (2)(f). 222
According to President Bush, OCCA declares FISA to be the exclusive
protocol for electronic surveillance, and FISA, in return, allows another
statute-in this case the AUMF-to authorize electronic surveillance. To
be specific, the President refers to section 109 of FISA because it prohibits
all electronic surveillance conducted "under color of law except as
authorized by statute. "223 Under the President's conception, the AUMF
provides the necessary statutory exception required by that provision.
Therefore, in the President's view, the OCCA exclusivity provision does
not bar the NSA program because FISA actually authorizes electronic
surveillance via the AUMF.224 But if this were correct, the exclusivity
provision would essentially be rendered meaningless because it would not
exclude anything.225 If the President were correct, then the text of the
OCCA section should read to prohibit electronic surveillance except "as
authorized by FISA or any other statute. ,226 To accept the President's
argument, one must believe that Congress, by passing a statute that
declared FISA the exclusive protocol for electronic surveillance, actually
intended that FISA be exclusive-but so is any other statute that
Id. While the aforementioned statute is long and complex, a careful reading clearly demonstrates
that FISA is the exclusive authority for "electronic surveillance." Id. To restate, while foreign
intelligence may be collected by other specifically mentioned statutes, only FISA is the authority
on electronic surveillance. Also, please note that section "101" of FISA became § 1801.
222. Department of Justice, supra note 159, at 23.
223. 50 U.S.C. § 1809(a)(1). Section 1809(a)(1) provides, in relevant part, that a "person is
guilty of an offense if he intentionally engages in electronic surveillance under color of law except
as authorized statute."
224. William Moschella, Asst. Attorney General, Department of Justice, Letter to Chairman
of the Senate Select Committee on Intelligence (Dec. 22, 2005) [hereinafter Letter from
Moschella], at http://www.epic.org/privacy/terrorism/fisa/nsaletterl22205.pdf.
225. Bazan & Elsea, supra note 198, at 41.
226. See id. at 40. Bazan and Elsea focus on section 2511 (2)(e) when stating that the provision
should be read to exempt electronic surveillance "as authorized by FISA or any other statute."
However, since the President takes the same approach to OCCA's exclusively provision, Bazan and
Elsea's analysis is equally applicable. Id.
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implicates electronic surveillance. On that basis, it is a fair inference that
the true intent of Congress in passing an exclusivity provision was to
actually make FISA's comprehensive statutory scheme the exclusive
means to conduct electronic surveillance.
Moreover, Congress last reviewed the OCCA exclusivity provision on
November 25, 2002,227 which was two months after the passage of the
AUMF. According to the Bush Administration, congressional leaders were
briefed on the NSA program "more than a dozen times., 22' The President's
argument implies that Congress gave its silent acquiescence to the program
by not changing the parameters of section 2511(f) upon receiving
knowledge as to the mechanics of the NSA program. However, the
President cannot plausibly suggest that Congress's inactions were an
official approval of the NSA program. In fact, it is because Congress was
aware of the NSA program, yet chose not to affirmatively sanction the
program, that the legality of the NSA is now in doubt.
The reasons for this doubt are: (1) the President's reliance on the
Hamdi precedent may be misplaced; (2) the President has failed to
demonstrate that the warrantless surveillance of American citizens is a
"fundamental incident of war"; and (3) Congress most likely intended that
FISA's comprehensive regulations be the exclusive protocol for
warrantless surveillance, the President appears to lack congressional
authorization to effectuate the NSA program.
B. The PresidentLacks the InherentAuthority to Effectuate the
NSA Program
229
In the seminal opinion of Youngstown Sheet & Tube Co. v. Sawyer,
Justice Jackson discussed the latitude of discretion afforded to a President
whose acts defy the will of Congress:
When the President takes measures incompatible with the expressed
or implied will of Congress, his power is at its lowest ebb, for then
he can rely only upon his constitutional powers minus any
constitutional powers of Congress over the matter. Courts can
sustain exclusive Presidential control in such a case only by
disabling the Congress from acting upon the subject. Presidential
claim to a power at once so conclusive and preclusive must be
227. See 18 U.S.C. § 2511 (2002).
228. Letter from Moschella, supra note 224, at 1.
229. 343 U.S. 579 (1952).
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scrutinized with caution, for what is at stake is the equilibrium
established by our constitutional system.23°
Because the NSA program is at odds with FISA, the President's power is
at its lowest ebb. Therefore, the legality of the program is cast into serious
doubt. Thus, the President must rely on his inherent executive authority
under Article H of the Constitution in order to effectuate the NSA
program.
Relying on his role as Commander-in-Chief and his authority as the
final arbiter of international relations, the President asserts that the
231
Constitution compels him to "protect the Nation from foreign attack.,
The President argues that he must have the "authority to gather
information necessary for the execution of his office. 232 Additionally, the
President insists that he enjoys a heightened level of authority because he
is presently acting as the Commander-in-Chief during wartime.233
While the President is correct that he enjoys substantial authority in
international relations 234 and in his capacity as Commander-in-Chief, 23 5 the
President's actions must still comport to the rest of the Constitution. 236 As
a separate consideration in Hamdi, the Supreme Court held that a
President, even while acting in the course of his capacity of Commanderin-Chief, must do so under the precepts of the Constitution. 23 ' To that end,
even if the President has the inherent authority to conduct warrantless
surveillance of some sort, his activities must comport to Fourth
Amendment standards.238
230. Id. at 637-38. (Jackson, J., concurring).
231. See Department of Justice, supra note 159, at 4.
232. Id.
233. Id.
234. See United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936). The U.S.
Supreme Court has stated "[t]he President is the sole organ of the nation in its external relations,
and its sole representative with foreign nations." Id.
235. See Chi. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).
236. See Hamdi v. Rumsfeld, 542 U.S. 507, 532-35 (2004).
237. In Hamdi, the U.S. Supreme Court concluded that, even though the President had the
authority to detain Yasser Hamdi as an enemy combatant, Hamdi must still be afforded his due
process rights. See Hamdi, 542 U.S. at 533-36. By analogy then, the President must observe the
requirements of the Fourth Amendment in the course of his duties as Commander-in-Chief.
238. The Fourth Amendment of the Constitution, reproduced in full, provides:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
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The U.S. Supreme Court has expressly declined to consider whether the
Fourth Amendment allows the executive branch to conduct warrantless
surveillance against American citizens for security from foreign threats.239
Despite the lack of precedent, the Keith case offers the most direct and
relevant mode of analysis in the evaluation of the NSA program. 24" The
legality of the NSA program turns on the two central Keith inquiries: (1)
"whether the needs of citizens for privacy and free expression may not be
better protected by requiring a warrant" 241' and (2) "whether a warrant
requirement
would unduly frustrate the efforts of Government to protect
242
itself.
In response to the Keith analysis, the President insists that he has the
inherent authority to conduct the NSA program because the "President has
uniquely strong constitutional powers in matters pertaining to foreign
affairs and national security. "243 It is true that President Bush enjoys a
heightened authority as Commander-in-Chief in the realm of foreign
affairs. But, as stated by Justice O'Connor, this heightened authority "is
not a blank check 244
for the President when it comes to the rights of the
citizens.",
Nation's
Examining the NSA program under the first tier of the Keith analysis,
the citizens' needs for privacy and free expression would unquestionably
be best protected by requiring a warrant. The Keith court recognized that
the commands of the Fourth Amendment cannot be swept aside for the
sake of administrative efficiency.245 On behalf of the Keith majority,
Justice Powell wrote:
The warrant clause of the Fourth Amendment . ..has been a
"valued part of our constitutional law for decades, and it has
particularly describing the place to be searched, and the persons or things to be
seized.
U.S. CONST. amend. IV.
239. See United States v. U.S. Dist. Ct. (Keith), 407 U.S. 297, 321-22 (1972).
240. In support of his assertion that the NSA program comports to the standards of the Fourth
Amendment, the President cites: United States v. Truong, 629 F.2d 908, 913-14 (1980); United
States v. Butenko, 494 F.2d 593, (3d Cir. 1974); and United States v. Brown, 484 F.2d 418,425-26
(5th Cir. 1973). See Department of Justice, supra note 159, at 5. These cases all implicate Keith as
the starting point for the analysis of the President's authority to conduct warrantless surveillance.
241. See Keith, 407 U.S. at 315.
242. Id.
243. See Department of Justice, supra note 159, at 5.
244. Hamdi v. Rumsfeld, 542 U.S. 507, 537 (2004).
245. See Keith, 407 U.S. at 315.
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determined the result in scores and scores of cases in courts all over
this country. It is not an inconvenience to be somehow weighed
against the claims of police efficiency. It is, or should be, an
important working part of our machinery of government, operating
as a matter of course to check the well-intentioned but mistakenly
over-zealous executive officers' who are a party of any system of
law enforcement." 2 '
There is no substitute for a warrant based on probable cause to protect the
rights of citizens. The warrant requirement ensures that the public will be
free from undue and burdensome governmental intrusion. Yet in
contravention of this essential constitutional command, the NSA program
does not require a warrant.247 The absence of this crucial constitutional
protection undermines the legality of the program.248
Instead of a warrant, the NSA program operates on a standard of
suspicion that has never been recognized by the U.S. Supreme Court, or
any other court. The NSA program is triggered when the Administration
has a "reasonable basis to conclude that one party to the communication
is a member of al-Qaeda, affiliated with al-Qaeda, or a member of an
organization affiliated with al-Qaeda, or working in support of al'
Qaeda."249
The NSA program's impossibly broad standard is nearly
infinite in application.25 As suggested by Professor Laurence Tribe, 25' "a
United States citizen living here who received a phone call from another
United States citizen who attends a mosque that the administration
believes is 'supportive' of al-Qaeda could be wiretapped without a
warrant. '25 2 The lack of a workable standard of probable cause forces the
conclusion that the privacy rights of citizens would best be protected by
requiring a warrant.
Worst of all, the NSA program is an unchecked exercise of executive
power. In the NSA program, only the executive branch concludes whether
an individual is affiliated with al-Qaeda. 25 In Keith, Justice Powell
recognized the inherent danger of that situation:
246. See id. (quoting Coolidge v. New Hampshire, 408 U.S. 443, 481 (1971)).
247. Press Briefing, supranote 29, at 2.
248. See Nolan et al., supra note 210, at 6.
249. Press Briefing, supranote 29, at 1.
250. See Nolan et al., supra note 210, at 6.
251. Laurence Tribe is a constitutional law scholar and the Carl M. Loeb Professor of Law at
Harvard University, at www.law.harvard.edu/faculty/directory/facdir.php?id=74 (last visited Oct.
19, 2006).
252. Id.
253. Press Briefing, supra note 29, at 2.
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Fourth Amendment freedoms cannot properly be guaranteed if
domestic security surveillances may be conducted solely within the
discretion of the Executive Branch. The Fourth Amendment does
not contemplate the executive officers of Government as neutral
and disinterested magistrates. Their duty and responsibility are to
enforce the laws, to investigate and to prosecute. The historical
judgment, which the Fourth Amendment accepts, is that unreviewed
executive discretion may yield too readily to pressures to obtain
incriminating evidence and overlook potential invasions of privacy
and speech.254
The NSA program is plagued with a conflict of interest. It is devoid of
judicial intervention. Without the cooperation of the judiciary, there is no
check on law enforcement officials who are quick to ignore potential
errors in judgment when the prosecution of a suspected terrorist is in sight.
It is irrelevant that the Administration has the best intentions of ending
global terrorism; the NSA program is simply too susceptible to abuse. The
failure of the Administration to integrate the judicial branch undermines
the indispensable system of checks and balances on which this government
is based. As such, the program raises significant concerns under the Fourth
Amendment.
As necessary as a warrant may be, the President may still be able to
continue the NSA program if he can prove under the second tier of Keith
that obtaining a warrant would unduly frustrate the intent of the
government to protect the nation from foreign security threats. President
Bush relies primarily on the reasoning articulated in Truong255 to
demonstrate that a warrant requirement poses an undue burden under the
Keith analysis.256 As stated in Part I, Truong held that a warrant
requirement may be unnecessary for foreign security because: (1) a
254. United States v. U.S. Dist. Ct. (Keith), 407 U.S. 297, 316-17 (1972).
255. To be fair, the President also relies on Brown and Butenko to assert that he has the
inherent authority to conduct warrantless surveillance. He states:
[t]he courts uniformly have approved this longstanding Executive Branch practice.
Indeed, every federal appellate court to rule on the question has concluded that,
even in peacetime, the President has inherent constitutional authority, consistent
with the Fourth Amendment, to conduct searches for foreign intelligence purposes
without securing a judicial warrant.
Department of Justice, supra note 159, at 5. This Article will respond to the Truong analysis
because it is the clearest and most recent opinion and Truong was decided in the wake of FISA.
256. Id. at 9.
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warrant requirement places an inefficient procedural hurdle on the
President; 257 (2) the executive branch is an expert on foreign affairs; 258 and
(3) the Constitution designates the President as the authority in
international affairs. 259 As such, the President contends he has inherent
authority260to authorize warrantless surveillance for the reasons set forth in
Truong.
The President's arguments are not unique. The cited reasons for
excusal from the warrant requirement were considered and rejected by the
261 While still mindful of the President's substantial grant
Zweibon court.26
of power in the realm of foreign affairs, the Zweibon court-over thirty
years ago-confronted the arguments that the President advances today.262
The Zweibon court found that the warrant requirement was not an
inefficient procedural hurdle because judges are not "insensitive or
uncomprehending of the issues involved in foreign security,, 263 and
therefore the judges "will not deny any legitimate requests for a
warrant. ' '2' The Zweibon court recognized that the executive branch was
the expert on foreign affairs.265 However, the Court noted that the judicial
branch was perfectly capable of understanding the complexities and
dimensions of the international arena.266 As stated in Zweibon, "If the
threat is too subtle or complex for our senior law enforcement officers to
convey its significance to a court, one may question whether there is
probable cause for surveillance., 2 67 Finally, while the Constitution does
designate the President as the authority in international affairs, the
Zweibon court reasoned that the President's authority must be tempered
with careful judicial scrutiny.2 68 In short, a warrant requirement does not
pose an undue burden on the executive branch.
257.
258.
259.
260.
261.
262.
263.
264.
265.
266.
267.
268.
United States v. Truong, 629 F.2d 908, 913 (4th Cir. 1980).
Id. at 914.
Id.
See Department of Justice, supra note 159, at 5.
See supra text accompanying notes 262-67.
See Zweibon v. Mitchell, 516 F.2d 594, 640-44 (D.C. Cir. 1975).
Id.at 641-42.
Id. at 642.
See id.
at 641 n.120.
Id.at 641.
Zweibon, 516 F.2d at 641.
Id.
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IUl. RECOMMENDATIONS TO CURE THE NSA PROGRAM'S ILLEGALITY
As a matter of policy, it is important to recognize the undeniably grave
concerns faced by the executive branch in a time of war. The President
argues:
[T]he Government's interest in engaging in the NSA activities is the
most compelling interest possible-securing the Nation from
foreign attack in the midst of an armed conflict. One attack already
has taken thousands of lives and placed the Nation from attack is
perhaps the most important function of the federal
Government-and one of the few express obligations of the federal
Government enshrined in this Constitution.269
The President is correct in his assessment of the gravity of the threat of
global terrorism. To that end, he must have all the appropriate tools to
counter that threat. But the President has a lawful and effective weapon at
his disposal in FISA. FISA strikes the appropriate balance between the
necessity of law enforcement and the protection of civil liberties. On the
other hand, the NSA program is a threat to all the rights of every citizen
for privacy and free expression. Thus, the NSA program should be revised
in a manner that would make it consistent with FISA and the Constitution.
First, to cure any question of illegality, the President should command
the administrators of the NSA program secure a warrant prior to
surveillance of an individual. The Supreme Court has long recognized that
a warrant, based on probable cause, adequately protects an individual's
right to privacy. 270 A warrant requirement would integrate the judicial
branch into the NSA program. The courts, a neutral and detached third
party, would be able to evaluate the evidence against an individual and
determine whether the intrusion is justifiable. After a court has granted a
warrant, the executive branch is free to pursue an aggressive surveillance
of the individual suspected of terrorist behavior.
The current level of suspicion required to effectuate the NSA program
must be elevated so that it resembles a standard of probable cause already
sanctioned by the courts. The Patriot Act amended FISA so that the
executive may secure a warrant for electronic surveillance based on
probable cause that a "significant purpose of the investigation" is for
foreign intelligence purposes.27 ' The Foreign Intelligence Surveillance
269. See Department of Justice, supra note 159, at 20.
270. See United States v. U.S. Dist. Ct. (Keith), 407 U.S. 297, 315-17 (1972).
271. 50 U.S.C. § 1804(a)(7)(B) (amended 2001).
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Court of Review, the appellate branch of FISA, determined that this
reduced standard of probable cause has been recognized as an adequate
safeguard of civil liberties.272 The current standard of the NSA program,
that one is "affiliated" with al-Qaeda, should be elevated so that the NSA
program is in line with standing precedent of a legally recognized standard
of probable cause.
In the event that securing a warrant is impossible because of the
imminence of an attack, the NSA program should conform to the
provisions of FISA. Under § 1805(f) of FISA, the President may authorize
instant electronic surveillance of an individual provided that the executive
branch received a warrant within 72 hours.2 73 If the NSA program
conformed to § 1805(f), the President would be adequately able to respond
to emerging terrorist threats while still providing due deference to civil
liberties.
Amending the NSA program will provide the President with an
effective means to defend the nation from a terrorist attack and win the
war against terror. By requiring a warrant, elevating the standard of
probable cause, and providing an emergency surveillance provision, the
NSA program will also protect civil liberties. With these recommendations
in effect, the NSA program could be a valid and effective tool against
terror that is fully consistent with the Constitution.
IV. CONCLUSION: THE RULE OF LAW: AN ESSENTIAL ELEMENT TO
WINNING THE "WAR ON TERROR"
It is lamentable, that to be a good patriot one must become the
enemy of the rest of mankind.
-Voltaire
America will never be destroyed from the outside. If we falter,
and lose our freedoms, it will be because we destroyed ourselves.
-Abraham Lincoln
These final thoughts are an expansion of earlier efforts to find the
elusive middle ground between a rule of law and a rule by law post 9/1 1.274
272. In re Sealed Case No. 02-001, 310 F.3d 717, 719-20 (Foreign Int. Sur. Ct. Rev. 2002).
273. 50 U.S.C. § 1805(f) (2006).
274. Supra text accompanying note 2.
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There are currently two ongoing debates regarding the rule of law
within the context of the war on terror. On the one hand, we have those
who argue that the war on terror is a "new paradigm" that does not neatly
lend itself to the rules and norms of international law or to traditional U.S.
democratic principles such as the right to due process, the right of privacy,
the freedom of association.2 75 This position is summed up by U.S. Vice
President Cheney who exclaimed that the United States "must be-willing
to go to the 'dark side' to fight terrorism" and that "[a] lot of what needs
276
to be done here will have to be done quietly, without any discussion.
The war on terror is summarily and singularly about overwhelming,
supreme emergencies where there is no time for debate, deliberation, or
choice. The "war" necessitates unprecedented governmental opaqueness,
secrecy, intrusion, and renders "quaint" 277 the traditional rules of war and
democratic values of due process, equal protection, privacy, and human
dignity enshrined within the U.S. Constitution and international
27
Reducing the war on terror to exigent circumstances is
agreements.8
sheer fantasy--constituent consumption, intended to be consumed without
pause of thought. Attempts at limiting the entire debate on how best to
275. Robert 0. Boorstin, Memorandum on the Geneva Conventions: TossingAside the Geneva
Conventions, Bush Decisions PlaceU.S. Troops in GreaterDanger,May 18, 2004, at http://www.
americanprogress.orglissues/kfiles/b79532.html (last visited Oct. 19,2006); U.S. Attorney General
Alberto Gonzales, Memorandum for the President of the United States, Decision Regarding
Application of the Geneva Conventions of War to the Conflict with al-Qaeda and the Taliban,
January 25,2002, availableathttp://www.msnbc.msn.com/id/4999148/site/newsweek/ (last visited
Oct. 19, 2006). See generally DAVID COLE & JAMES X. DEMPSEY, TERRORISM AND THE
CONSTITUTION: SACRIFICING CIVIL LIBERTIES IN THE NAME OF NATIONAL SECURITY (2002); see
also DAVID COLE, ENEMY ALIENS: DOUBLE STANDARDS AND CONSTITUTIONAL FREEDOMS IN THE
WAR ON TERRORISM (2003).
276. Elisa Massimino, Heading Toward the 'Dark Side,' L.A. TIMES, Nov. 21, 2005, at B11,
available at http://www.common dreams.org/views05/1121-25.htm (last visited Oct. 19,2006); The
Vice President Appears on Meet the Press with Tim Russert, Sept. 16, 2001, available at
http://www.whitehouse.gov/vicepresident/news-speeches/speeches/vp20010916.html (last visited
July 12, 2006).
277. Gonzales, supra note 275.
278. See, e.g., David E. Sanger & Eric Schmitt, Bush Says He's Confident That He and
McCain Will Reach Agreement On Interrogation, N.Y. TIMES, Dec. 13, 2005, at A22, available at
http://www.nytimes.com/2005/12/13/politics/13detain.html (July 12, 2006) (describing how the
White House "prefers, in background conversations, to talk about the 'doomsday scenario': What
would happen if the president believed a nuclear device had been planted in an American city, and
interrogators had just minutes to extract information about its location from a terror suspect?" and
quoting William H. Taft, IV, who served as the State Department's legal advisor during President
Bush's first term, that Senator John McCain's amendment to ban inhumane and degrading
treatment of detainees "calls for conduct to be consistent with the Army field manual, but doesn't
presuppose what that is to be").
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combat global terrorism to a false premise based upon ticking time bombs
and imminent attacks from terrorists and rogue states is a political ploy
that has little to do with reality in most cases. Will the result of such
interference be civil war?
In reality, the lion's share of combating global terrorism comprises a
web of complexities. Its components include methodically and
painstakingly acquiring bits of intelligence and piecing them together into
a larger mosaic. By seizing and freezing assets of terrorists and terrorist
organizations, implementing foreign policies and employing diplomatic
pressure on states susceptible to terrorist activities, a responsible war on
global terrorism can be waged. Many terrorist plots, including the 9/11
attacks on the United States, are not planned or carried out in minutes,
hours, or even days. They appear to be the product of patient and
methodical planning by terrorists over the course of years and span several
continents.279
In all but the most extreme circumstances, combating global terrorism
should be a deliberate, debatable, multilateral undertaking; the combat
efforts should always operate within the parameters of the rule of law. The
Framers of the U.S. Constitution appeared to concede that the office of the
chief executive needed to exercise a limited amount of secrecy, 280 speed,
279. See Maria Ressa, Ressa:Hambalithe al Qaeda,JemaahIslamiyahLink, CNN.COM, Aug.
14,2003, availableat http://www.cnn.com/2003/WORLD/asiapcf/southeast/08/14/otsc.ressa/index.
html (last visited July 12, 2006). Riduan Isamuddin, a key al-Qaeda figure in Asia who is also
known as Hambali and one of the leaders of Jemaah Islamiyah, al-Qaeda's arm in Southeast Asia,
organized a meeting of about halfa dozen al-Qaeda senior leaders in Malaysia in
2000, which basically was one of the first planning sessions of the 9/11 attack.
Among the leaders who attended those meetings was the man who was believed
to be the mastermind of the "USS Cole" as well as the bombing operations within
Southeast Asia, itself. Three of the September 11 hijackers were also at that
meeting.
Id.; see also CNN presents: Seeds of Terror, CNN television broadcast, aired June 15, 2003,
(tracing the roots of ai-Qaeda to Southeast Asia, based on a terrorist plot that occurred in that region
in 1995, which was a blueprint for what happened on September 11,2001). See also JEAN-CHARLES
BRISARD & GUILLAUME DASQUIE, FORBIDDEN TRUTH: U.S.-TALBAN SECRET OIL DIPLOMACY AND
THE FAILED HuNT FOR BIN LADEN (2002).
280. THE FEDERALIST No. 64, at 394 (John Jay) (recognizing the need for "perfect SECRECY
and immediate DESPATCH [sic]" within the executive in order for him or her to execute treaties
and for "the business of intelligence," when "the most useful intelligence may be obtained, if the
persons possessing it can be relieved from apprehensions of discovery"); but see Bill of Rights,
U.S. CONST. amend. I, Ill, IV, V VI, IX, & XIV.
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and dispatch to protect the national security of the United States.2 8 ' The
Framers, having an aversion to unaccountable standing armies, also agreed
that significant war powers would be vested in Article I, the legislative
branch, as a means of establishing a check on the executive's powers as
Commander-in-Chief.28 2 The Framer's fear of limitless power of the
executive vis-6-vis as Commander-in-Chief of the armed forces is
evidenced in the Declaration of Independence and in the Bill of
Rights-the latter serving as a further check on executive power. Thus,
while it is fairly clear that the President has some powers under Article II
to preserve, protect, and defend the nation as Commander-in-Chief, it is
also equally clear that those powers were never intended to be plenary.283
If this were so, then we would have no need for little inconveniences such
281. See U.S. CONST. art. II, § 2 ("The President shall be the Commander in Chief of the Army
and Navy of the United States, and of the Militia of the several States ....
");
see also id art. II, §
1 (stating the President has a fundamental duty to "preserve, protect, and defend the Constitution");
United States v. U.S. Dist. Ct. (Keith), 407 U.S. 297 (1972). Implicit in that duty is the power to
protect our Government against those who would subvert or overthrow it by unlawful means. In
the discharge of this duty, the President-through the Attorney General-may find it necessary to
employ electronic surveillance to obtain intelligence information on the plans of those who plot
unlawful acts against the Government. Id. at 310; but see U.S. CONST. art. III; Keith, 407 U.S. at
316.
Fourth Amendment freedoms cannot properly be guaranteed if domestic security
surveillances may be conducted solely within the discretion of the Executive
Branch... [t]he historical judgment, which the Fourth Amendment accepts, is that
unreviewed executive discretion may yield too readily to pressures to obtain
incriminating evidence and overlook potential invasions of privacy and protected
speech.
Keith, 407 U.S. at 316.
282. U.S. CONST. art. I, § 8 ("Congress shall have power To... provide for the common
Defence ... To declare War ...To raise and support Armies ...To provide and maintain a
Navy ...[and t]o make all Laws which shall be necessary and proper for carrying into Execution
the foregoing Powers, and all other Powers vested by this Constitution...").
283. See, e.g., United States v. Ehrlichman, 376 F. Supp. 29, aft'd, 546 F.2d 910 (D.C. Cir.
1976), cert. denied, 429 U.S. 1120 (1977) (explicating at note 4 "The doctrine of the President's
inherent authority as 'the sole organ of the nation in its external relations,"' 10 ANNALS OF CONG.
613 (1800) (remarks ofJohn Marshall); United States v. Curtiss-Wright Exp. Corp. I, 299 U.S. 304,
319 (1936). None of these cases purport to deal with the constitutional rights of American citizens
or with presidential action in defiance of congressional legislation. When such issues have arisen,
executive assertions of inherent authority have been soundly rejected. See Kent v. Dulles, 357 U.S.
116, 129-30 (1958); Youngstown Sheet & Tubing Co. v. Sawyer, 343 U.S. 579 (1975); see also
U.S. CONST. art. II, § 3 (establishing that the President of the United States "shall take Care that the
Laws be faithfully executed.. .); id. art. II, § I (affirming that the President shall "preserve, protect
and defend the Constitution of the United States").
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20061
DOWN TO THE WIRE ASSESSING THE CONSTITUTIONALITY
as having Congress battle over whether or not certain provisions of the
Patriot Act should be extended, made permanent, or scrapped entirely.
President Bush, acting under Article 11, could simply authorize the Patriot
Act's mandates without congressional or judicial participation, 'and a
police state would be created. Thus, we would have the President
functioning under the rule by law and no longer under the constitutional
rule of law.284
While it is conceded that one of the primary duties of any government
is to ensure the survival of its legitimate governing regime and the
physical safety of its citizens, an equally important duty is to preserve
democracy and civil liberties and to fulfill obligations mandated under
national, international, and humanitarian law.
Are Chief Justice Warren's words applicable to the "war on
terrorism"? 2 85 The answer is problematic, because the judicial branch of
the U.S. government has just begun to awake from its post 9/11 slumber
and is considering constitutional values within the context of the present
crisis. The Supreme Court, long before 9/11, introduced a crime control
model of governance which is now firmly in place.286 The President and
attorney general continually speak in terms of a "war on terror," however,
this is a war that is both undeclared and unending. Since Marbury v.
Madison,"7 judicial review has been constitutionally mandated where
constitutional issues emerge.288
No one objects to a society seeking to protect itself and its institutions
from assault, regardless of whether the threat comes from at home or
abroad. However, within a constitutional democracy model, protection
includes democratic values that are enshrined within one's constitution. It
is unacceptable to infringe upon and subvert human rights unless a tested,
factual basis for infringement emerges.289 This is supposed to be the goal
of judicial review. It is not appropriate for a President to create law
through speeches to selected receptive audiences or a cowering press.
Governmental intervention must be constitutionally tested within the
284. See Fletcher Baldwin, The United States Supreme Court: A Creative Check of
InstitutionalMisdirection, 45 IND. L.J. 550 (1970); see also Zagaris, infra note 290.
285. See supra text accompanying note 2.
286. Aharon Barak [President of the Supreme Court of Israel], A Judge on Judgingthe Role
of a Supreme Court in a Democracy, 116 HARv. L. REv. 19, 27-46 (2002).
287. 5 U.S. 137 (1803).
288. See Barak,supra note 286, at 121-22.
289. See generally H.L.A. HART, THE CONCEPT OF LAW (1961).
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context of compelling credentials. 29" None have been shown in the present
case.
Anthony Lewis, New York Times editorial writer and author ofthe book
Gideon 's Trumpet, articulated this more succinctly in the inaugural of the
Joseph M. Reck, Distinguished Lecture Series at Emory University on
March 19, 2003. Anthony Lewis's conclusion merits repeating.
Summarizing the nature of the present administration's policy towards
enemy combatants he stated:
This is the crux of the Padillacase. Jose Padilla is not a person with
a sympathetic record. But what matters is not his person, but the
breadth of the claim made by Ashcroft and his lawyers. It is that
they can keep any American citizen-any of us-in prison for the
rest of our lives, in solitary confinement on the say so of
government officials, with no check except the rather slim
possibility of a judge finding that the government did not have any
evidence.
The administration argues that requiring it to treat Padilla with
constitutional fairness would "significantly hamper the nation's
defense." But if there is anything about which the press should be
skeptical, it is such assertions that the national security would be at
risk if courts applied the Constitution. For those claims have turned
out to be wrong again and again.
The Pentagon Papers case was an outstanding example. If the New
York Times were allowed to publish its series on the origins of the
Vietnam War, the government said, national security would be
gravely damaged. On the fourth day of publication of the Times'
lawyer, [the late Professor] Alexander Bickel, observed drily to the
judge:
291
"Your Honor, the republic still stands."
290. See Bruce Zagaris, U.S. DistrictCourtReiteratesUS. TerrorSuspect's Right to Counsel,
19 INT'L ENFORCEMENT L. REP. 183 (2003).
291. Fletcher N. Baldwin, Jr. & Theresa A. DiPerna, The Rule of Law: An Essential
Component of the Financial War Against Organized Crime and Terrorism in the Americas
(unpublished conference materials), available at www.law.ufl.edu/cgr/
conference/06confmnaterials/2_Panel/2_FletcherBaldwin-Dipematerrorism.pdf; Anthony Lewis,
Wake Up America, N.Y. TIMES, Nov. 30, 2001, at A27, availableat http://www.commondreams.
org/views01/ 1130-05.htm (last viewed July 12, 2006). See Fletcher Baldwin, The Rule of Law,
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V. EPILOGUE
There should be no objection to a government protecting its people
from assaults originating at home or from abroad. Protection, however, is
only one factor in an array of constitutional principles. It is unacceptable
to implement secret programs that diminish constitutional values while
engaged in doublespeak policies. To defer to constitutional values and to
diminish them, requires, at the least, a tested factual basis-not a sparse
conclusion of efficacy. Herein lies the goal of Article III of the U.S.
Constitution.
On January 17, 2006, the American Civil Liberties Union, together
with a collection ofjournalists, academics, and attorneys who maintained
regular communication with persons who allegedly had links to al-Qaeda,
filed a complaint against the NSA challenging the constitutionality of the
warrantless wiretapping program."'
On August 17, 2006, U.S. District Court Judge Taylor issued an
opinion in the case of American Civil Liberties Union v. NationalSecurity
Agency.293 In that opinion, Judge Taylor concluded that the wiretapping
program was an unconstitutional exercise of executive power.29 4 The secret
wiretapping impermissibly burdened the First and Fourth Amendment
rights of the plaintiffs. 95 The plaintiffs asserted that the government
violated their Fourth Amendment rights in several ways such as: 1) seizing
their constitutionally protected communications without a warrant; 296 2)
the program also violated First Amendment rights by the chilling effect of
constant random surveillance; 297 and 3) the program exceeded the
constitutional grant of executive power under the Separation of Powers
doctrine. 98
The court noted that the wiretaps were a seizure that triggered the
Fourth Amendment's protection against yielding "too readily to pressures
Human Rights and ProportionalityAs Components of the War Against Terrorism: Is the U.S.
Judiciary in Self-Imposed Exile?, 7 J. MONEY LAUNDERING 245 (2004).
292. Complaint regarding NSA http://www.aclu.org/pdfs/safefree/nsacomplaint.011706.pdf.
The ACLU filed the suit in the United States District Court for the Eastern District of
Michigan-the same court that decided Keith. See United States v. U.S. Dist. Ct. (Keith), 407 U.S.
297 (1972).
293. 438 F. Supp. 2d 754 (E.D. Mich. 2006).
294. Id. at 782.
295. Id.
296. See id.
at 775.
297. Id. at 769-71.
298. ACLU, 438 F. Supp. 2d at 777-78.
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to obtain incriminating evidence and overlook potential invasions of
privacy and protected speech." 2 The Fourth Amendment "requires
reasonableness in all searches."3 ° Congress spoke in establishing the
FISA; therefore, FISA lawfully provided the executive branch with
numerous circumstances to conduct warrantless surveillance in times of
emergency.30 ' However, the court held that Congress had not spoken with
respect to the immensely invasive nature of the NSA program which was
deemed objectively unreasonable in relation to the larger context of the
body of law.30 2
In addition to addressing the violations of Fourth Amendment rights,
the court also held that the NSA program unconstitutionally interfered with
the plaintiff's First Amendment right to free expression.3 3 The court,
strengthened by the earlier cases examining similar governmental
regulation of protected speech, a" noted that a governmental action to
regulate speech may be "justified only upon showing of a compelling
governmental interest; and that the means chosen are least
restrictive . .30"
FISA had already lawfully provided the executive
branch with the power to engage in warrantless surveillance, and therefore,
the NSA program was not the least restrictive means of accomplishing
national security goals. 3"
The separation of power issue, the executive weapon for marginalizing
Article Il review post 9/11, also invoked a judicial response. The court
noted that the key to a free government is the lodging of the control of
299. Id. at 775 (citing United States v. U.S. Dist. Ct. (Keith), 407 U.S. 297, 315-17 (1972)).
300. Id.
301. Id.
302. See id.
303. ACLU, 438 F. Supp. 2d at 776.
304. Judge Taylor was very mindful that national security cases often present a mix of Fourth
and First Amendment concerns. Id. Her recognition of the policy articulated in Keith is apt:
Though the investigative duty of the executive may be stronger in [national
security] cases, so also is there greater jeopardy to constitutionally protected
speech. History abundantly documents the tendency of Government-however
benevolent and benign its motives-to view with suspicious those who most
fervently dispute its policies. Fourth Amendment protections become the more
necessary when the targets of official surveillance may be those suspected of
unorthodoxy in their political beliefs.
Id. (citing United States v. U.S. Dist. Court, 407 U.S. 297, 313-14 (1972).
305. ACLU, 438 F. Supp. 2d at 776.
306. Id.
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DOWN TO THE WIRE: ASSESSING THE CONSTITUTIONALITY
emergency powers outside the executive branch.3"' Recalling the seminal
teachings of Justice Jackson in Youngstown Sheet and Tube Co. v.
Sawyer,3 °8 the court recognized that when the President acts in
contravention to the will of Congress, his power is at a minimum and he
may only rely on his inherent constitutional power.3 9 Because the
President squarely defied the will of Congress310as expressed through FISA,
the President's power was at its lowest ebb
As an alternative basis of support, that the President was actually acting
in accord with Congress, the government argued that Congress implicitly
authorized the NSA program with the passage of AUMF.3 ' The court,
however, was not persuaded. 3 2 Noting that the rules of statutory
construction require that the specific statutes govern those of general
applicability, the court held that the highly specific commands of FISA
overrule any suggestion of legality raised by the AUMF.31 3
Because the President lacked congressional authorization to effectuate
the NSA program, the court acknowledged that any legal justification for
the NSA program would have to stem directly from the President's
inherent power under the Constitution.31 4 The court further noted that the
executive branch is itself a creature of the Constitution, and therefore
constrained by the limits of that document. As such, the court concluded
that the actions taken by the executive must comport to the First and
Fourth Amendments.31 5 Since the highly invasive nature of the NSA
program violated those amendments, the President lacked inherent
authority to authorize the program.316 In short, the NSA program was in
direct violation of the liberties contained in the Constitution. Mindful of
those liberties, the court concluded: "It was never the intent of the Framers
to give the President such unfettered control, particularly where his actions
blatantly disregard the parameters clearly enumerated in the Bill of
Rights. ' ' 313178 With that, the court ordered an immediate halt to the
program.
307.
308.
309.
310.
311.
312.
313.
314.
Id.at 778.
343 U.S. 579 (1952).
ACLU, 438 F. Supp. 2d at 777.
Id.at 778.
Id.at 779.
Id.
Id.
ACLU, 438 F. Supp. 2d at 776.
315. Id.at 781.
316. Id.
317. Id.at 771
318. Id.at 782.
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The President has appealed the ruling; and the controversy is far from
resolved.3" 9 The opinion of Judge Taylor has been assailed, and some
critics argue it is thinly reasoned.32 ° To resolve the matter, the Bush
Administration continues to request Congress grant explicit authorization
for the NSA program.32 '
Judge Taylor's opinion may be overturned; however, Judge Taylor did
more than just draft an opinion reaffirming the right of the people to be
free from unreasonable search and seizure. She demonstrated that there are
still those who not only read the Constitution of the United States, but also
are willing to put their educated findings on paper for all to review.
The post-9/1 1 attempts by the Bush administration to marginalize
judicial review under Article Il of the U.S. Constitution have been met
with considerable judicial opposition.3 22 Judge Taylor is not alone in her
fidelity to her oath. Federal judges from all comers of the nation are now
involved as partners in ensuring that the republic stands with the
Constitution in tact. Judge Taylor reaffirms a basic principle of our
Constitution: the Bill of Rights is not a suicide pact.323
Judge Taylor's opinion represents an acknowledgment of the
importance of public review. Learned Hand noted long ago that Article I
is not enough; the people must learn the difference between rights and
doublespeak.124 As Learned Hand put it: "Liberty lies in the hearts of men
and 2women;
if it dies there, no constitution, no law, no court can save
5
it."
3
319. See Dan Eggan & Dafna Linzer, Judge Rules Against Wiretaps, WASH. POST, Aug. 18,
2006, at Al.
320. Id.
321. Id.
322. See, e.g., Hepting v. AT&T Corps., 439 F. Supp. 2d 974 (N.D. Cal. 2006); Doe v.
Gonzales, 449 F.3d 415 (2d Cir. 2006); Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
323. See Baldwin, supranote 270, at 245.
324. See generally Timothy Lynch, Doublespeak and the War on Terrorism, Cato Inst.
Briefing Papers No. 98, Sept. 6, 2006.
325. Id. at 11; Learned Hand, The Spirit of Liberty, in SPIRIT OF LIBERTY: PAPER AND
ADDRESSES OF LEARNED HAND 189-90 (2d ed. 1953).
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